UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA )
)
v. ) Crim. No.13-10200-GAO
)
DZHOKHAR A. TSARNAEV, )
Defendant )


GOVERNMENT’S OPPOSITION TO
DEFENDANT’S MOTION TO SUPPRESS STATEMENTS

The United States of America, by and through its undersigned counsel, respectfully opposes
the motion of defendant, Dzhokhar Tsarnaev (“Tsarnaev”), to suppress statements he made to FBI
agents at Beth Israel Deaconess Medical Center (“Beth Israel”). As grounds for this opposition, the
government states the following.
Tsarnaev committed one of the most sophisticated and successful terrorist attacks on
American soil since September 11, 2001. The attacks began with the deadly bombing of individuals
at an iconic American event on April 15, 2013, and continued with additional bomb attacks on law
enforcement officers on April 18 and 19, 2013. The circumstances of these crimes gave law
enforcement strong reason to believe that the public was at risk from additional bombs, bombers, or
bomb plots. In light of the history of coordinated terrorist attacks (and planned attacks) such as the
ones in Mumbai, India, Times Square, the New York subway system, and on September 11, the FBI
had a duty to be investigate whether any additional attacks were imminent. Interviewing Tsarnaev
as soon as possible was therefore essential to protect the public from possible harm.
The fact that Tsarnaev was in the hospital recovering from bullet wounds does not mean the
interview was coercive or that the agents who conducted it did anything wrong. As J ustice
Kennedy has explained, “There is no rule against interrogating suspects who are in anguish and
pain. The police may have legitimate reasons, borne of exigency, to question a person who is
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suffering or in distress. Locating the victim of a kidnaping, ascertaining the whereabouts of a
dangerous assailant or accomplice, or determining whether there is a rogue police officer at large
are some examples.” Chavez v. Martinez, 538 U.S. 760, 796 (2003) (Kennedy, J ., concurring in
part and dissenting in part). The question is always whether the police took actions that they “may
not take if the prohibition against the use of coercion to elicit a statement is to be respected.” Id. at
797. Because the agents in this case did not coerce Tsarnaev into making statements against his
will, his statements were “voluntary” for Fifth Amendment purposes. And because the government
does not intend to use his statements in its case-in-chief, the Miranda and Edwards issues are moot.
Similarly, the government did nothing wrong in presenting Tsarnaev to the magistrate judge
on the first business day after his arrest. There was no unnecessary delay, taking into account the
intervening weekend and his obvious need for medical treatment; his initial appearance was not
delayed exclusively for purposes of interrogation; and consequently, there is no basis in law to hold
that any of his statements during this period are inadmissible. Accordingly, the motion to suppress
should be denied and the government should be permitted to use the statements for impeachment or
rebuttal purposes if necessary.
INTRODUCTION
On April 15, 2013, Tsarnaev and his brother Tamerlan detonated two powerful, remote-
controlled pressure-cooker bombs seconds apart along the final stretch of the Boston Marathon,
killing a little boy and two young women and maiming and injuring approximately 260 others. The
bombings were one of the bloodiest terrorist attacks ever against American civilians and drew
worldwide attention.
After detonating the bombs, both Tsarnaevs escaped and remained at large until the night of
April 18, 2013, when they ambushed and executed an MIT police officer. Then they violently
carjacked, kidnaped, and robbed a civilian before fleeing to Watertown, where police finally caught
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up with them. During a fierce confrontation, they fired numerous gunshots and hurled several
additional bombs at the police. Tsarnaev eventually returned to the vehicle he had helped carjack,
deliberately drove at top speed toward a group of police officers, ran over his brother before police
could drag him to safety, crashed through a police barricade, and escaped. He eluded a massive
police manhunt for approximately 20 hours before officers found him hiding in a drydocked boat
and arrested him. (His brother died on the way to the hospital.)
A. Basis for reasonable belief that there was an imminent danger to public
safety

The facts known to law enforcement at the time they interviewed Tsarnaev provided reason
to believe that the Tsarnaevs had accomplices and that they or others might have built additional
bombs that posed a continuing danger to public safety:
 The Tsarnaevs had access to a small arsenal of bombs. They used two of them at the
Marathon and several days later used four more in Watertown. They also indicated to the
man they carjacked that they planned to travel to New York to explode additional bombs.
These facts suggested the existence of a larger plot to wage a multi-pronged attack on
different cities, as well as the possible existence of yet more unused bombs and other
bombers waiting to pick up where the Tsarnaevs had left off.

 Of the two remote-control detonators used during the Marathon bombings, only one was
recovered, suggesting that the Tsarnaevs (or someone else) had retained the other one for
possible use with additional bombs.

 During the week of April 15, 2013, police received multiple reports from people in the
Boston area of suspicious objects that might be bombs. Although none of those reports
proved accurate, they heightened police concern about the existence of additional bombs.

 The Marathon bombs were constructed using improvised fuses made from Christmas lights
and improvised, remote-control detonators fashioned from model car parts. These relatively
sophisticated devices would have been difficult for the Tsarnaevs to fabricate successfully
without training or assistance from others.

 The Tsarnaevs also appeared to have crushed and emptied hundreds of individual fireworks
containing black powder in order to obtain explosive fuel for the bombs. The black powder
used in fireworks is extremely fine; it was therefore reasonable to expect that if the
Tsarnaevs had crushed the fireworks and built the bombs all by themselves, traces of black
powder would be found wherever they had done the work. Yet searches of the Tsarnaevs’
residences, three vehicles, and other locations associated with them yielded virtually no
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traces of black powder, again strongly suggesting that others had built, or at least helped the
Tsarnaevs build, the bombs, and thus might have built more.

 For years after September 11, 2001, one of Al-Q’aeda’s chief goals was to carry out another
high-profile, spectacular attack on the United States. The spectacular nature and devastating
carnage of Tsarnaev’s attack -- which targeted a high-profile, iconic American event, and
was followed by the execution of a police officer in Cambridge and the attempted murder of
other police officers in Watertown -- suggested that it might have been planned, directed,
and even assisted by a terrorist group.

 The note Tsarnaev wrote in pencil on the inside of the boat where he was found hiding
underscored the possible involvement of a terrorist group. Tsarnaev wrote:

I’m jealous of my brother who ha[s] [re]ceived the reward of jannutul
Firdaus (inshallah) before me. I do not mourn because his soul is
very much alive. God has a plan for each person. Mine was to hide
in this boat and shed some light on our actions. I ask Allah to make
me a shahied (iA) to allow me to return to him and be among all the
righteous people in the highest levels of heaven. He who Allah
guides no one can misguide. A[llah Ak]bar!

The US Government is killing our innocent civilians but most of you
already know that. As a [UI] I can’t stand to see such evil go
unpunished, we Muslims are one body, you hurt one you hurt us all.
Well at least that’s how muhhammad (pbuh) wanted it to be [for]ever,
the ummah is beginning to rise/[UI] has awoken the mujahideen,
know you are fighting men who look into the barrel of your gun and
see heaven, now how can you compete with that. We are promised
victory and we will surely get it. Now I don’t like killing innocent
people it is forbidden in Islam but due to said [UI] it is allowed. All
credit goes [UI].

Stop killing our innocent people and we will stop.

This writing, which bears hallmarks of al-Q’aeda-inspired rhetoric, suggested that Tsarnaev
might have received instruction from a terrorist group. In addition, the fact that Tsarnaev
used the word “we” (i.e. “We are promised victory and we shall surely get it. . . . Stop
killing our innocent people and we will stop.) suggested that others might be poised to
commit similar attacks and that Tsarnaev was urging them on.

 Before hiding in the boat, Tsarnaev smashed both of his cell phones to avoid being located
through them. One of them appeared to be a “burner” phone: it contained a SIM card
purchased the day before the Marathon and was used by Tsarnaev on April 15 to coordinate
the attacks with his brother. These basic elements of apparent terrorist tradecraft provided
additional grounds for believing that Tsarnaev had received training and direction from a
terrorist group.

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In short, the facts and circumstances known to law enforcement at the time they interviewed
Tsarnaev provided ample reason to believe that the Tsarnaevs did not act alone; that others might
have radicalized them, directed them, trained them, assisted them, and/or concealed them; and that
these others might be planning or poised to carry out additional attacks. Finding out if there were
other bombs, other bombers, or others plotting similar and coordinated attacks was a public safety
matter of the utmost urgency.
B. Tsarnaev’s physical and mental condition during questioning

Following Tsarnaev’s arrest he was taken directly by ambulance to Beth Israel hospital in
Boston. He arrived at approximately 9:00 p.m. According to medical records, he was awake, alert,
and conversing fluently both during the ambulance ride and at Beth Israel. He had no internal
injuries, and his psychological condition appeared normal. Shortly after his arrival, his mental
status began to decline and he was intubated, but after receiving a single unit of blood he quickly
stabilized. He was given pain medication, examined by various doctors, and then transferred to the
operating room for treatment of multiple gunshot wounds. He underwent surgery to repair his
wounds, which was successful.
On April 20, 2013, at approximately 5:00 a.m., Tsarnaev was transferred to the surgical
intensive care unit to begin his recovery. He spent the next 14 hours sleeping, resting, and receiving
care. By 6:30 p.m., according to a note in his chart, he had been weaned off propofol, a short-acting
sedative that normally wears off quickly, and was receiving only Fentanyl for pain. At 11:30 p.m.
that night, the Fentanyl was discontinued, and Tsarnaev was given Dilaudid as needed for pain. At
6:00 a.m. the next morning, a nurse noted on Tsarnaev’s chart, “Pain adequately controlled with low
doses of Dilaudid.” Tsarnaev signed informed consent forms for various procedures on April 21 at
4:00 a.m., 7:15 a.m., and 2:30 p.m.
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Two FBI agents started interviewing Tsarnaev on April 20 at 7:22 p.m., nearly 24 hours
after he arrived at the hospital. Before they began, the nurse overseeing Tsarnaev’s care informed
them that the interview would pose no medical risk to him. The nurse also told them that Tsarnaev
had suffered no brain injuries and that his only medications at that time were an antibiotic and
Fentanyl, neither of which, at their current dose, would inhibit his mental faculties. The agents then
introduced themselves to Tsarnaev, and he confirmed that he could hear and understand them, could
respond to them notwithstanding his tracheostomy, and was not in too much pain. (The agents
sought and obtained these same assurances a second time at the beginning of the second day of
questioning.)
The interview proceeded until the morning of April 22 as follows:
Questioning Rest/sleep/medical treatment
43 min 30 min
30 min 90 min
45 min 140 min
67 min 197 min
65 min 10hrs, 30 min
60 min 80 min
83 min 27 min
45 min 15 min
35 min 125 min
50 min 17 min
13 min 112 min
43 min 90 min
75 min 19 min
36 min End

Tsarnaev was able to speak despite his tracheostomy by covering it. To spare him the effort, the
agents began by asking mostly yes or no questions. Tsarnaev at first answered mainly by nodding
or writing in a notebook; later he answered virtually all questions orally. Throughout the entire
interview he appeared alert, mentally competent, and lucid.
On April 22, 2013, at 11:00 a.m., two hours after the interview concluded, Tsarnaev’s
attending physician testified in a hearing before United States Magistrate J udge Marianne B.
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Bowler. He described Tsarnaev’s condition as “guarded” but “not critical.” He stated that Tsarnaev
had received .5 mg of Dilaudid at 7:00 a.m. and another .5 mg at 10:00 a.m., and that this was the
only pain medication or sedation that Tsarnaev had received during the preceding eight hours. He
testified that, despite Tsarnaev’s injuries, medical treatment, and this medication, Tsarnaev was
lucid enough to understand and respond to basic questions. On the basis of this expert testimony,
J udge Bowler proceeded forthwith to conduct an initial appearance.
During the initial appearance, Tsarnaev was told the charges against him, the maximum
penalties, and certain legal rights, among other things. He repeatedly indicated that he understood
everything that was being said to him. At the conclusion of the hearing, having had the benefit of
observing Tsarnaev and hearing his answers in person, the court stated: “I find that the defendant is
alert, mentally competent, and lucid.”
C. The FBI interview of Tsarnaev
From the moment the agents began questioning Tsarnaev about the Marathon bombings, he
readily admitted his own involvement,


But Tsarnaev steadfastly denied that any other bombs existed or that anyone else was
involved in the bombings. Specifically,




.
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In the face of these denials, the agents continued to question Tsarnaev not to extract a
confession, which they already had, but because of their reasonable belief that Tsarnaev was
concealing information about impending attacks, accomplices, and/or the existence of additional
bombs. For example, Tsarnaev’s claim that
seemed implausible given the absence
of any traces of black powder in the apartment. The agents also needed to determine whether
Tsarnaev was unaware of the existence of accomplices who might be plotting additional attacks but
might still have information that, in combination with other information known to law enforcement,
could help law enforcement identify accomplices and stop them in time.
To determine if there were additional bombs, bombers or bomb plots, the agents asked only
those questions likely to reveal that information, namely: who constructed the bombs, and how,
when, and where they were constructed; where any additional bombs were stored; who if anyone
had assisted the brothers; who made the decision to target the Boston Marathon, murder an MIT
Policeman, kidnap a civilian and attack additional policemen in Watertown; who Tsarnaev had
contacted immediately before and after the bombings, and why; and how and when he and his
brother had become radicalized.
ARGUMENT
I. The Agents Did Not Violate Tsarnaev’s Fifth Amendment Rights By Coercing Him
to Make Statements Against His Will.

A. A statement is “voluntary” for Fifth Amendment purposes unless it is
coerced.

The Self-Incrimination Clause of the Fifth Amendment prohibits the government from using
a defendant’s “involuntary” statements against him in a judicial proceeding. See Dickerson v.
United States, 530 U.S. 428, 434 (2000). Although the Supreme Court wrote a half century ago that
a statement is “involuntary” for Fifth Amendment purposes if it is not “the product of a rational
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intellect and a free will,” Blackburn v Alabama, 361 U.S. 199, 208 (1960), it has since clarified that
“coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary,’”
Colorado v. Connelly, 479 U.S. 157, 167 (1986). The trial court in Connelly suppressed a
defendant’s confession as “involuntary” based on expert testimony that it was prompted by
“psychosis” and “command hallucinations” rather than a “free and rational choice[]” to confess. Id.
at 161-62. The Colorado Supreme Court affirmed. See 702 P.2d 722 (1985). It held that the proper
test of “voluntariness” is whether statements are “the product of a rational intellect and a free will,”
and that “the absence of police coercion or duress does not foreclose a finding of involuntariness.”
Id. at 728.
The United States Supreme Court reversed. It squarely rejected the proposition that a
defendant’s statements are ever “involuntary” in the constitutional sense absent “the crucial element
of police overreaching.” 479 U.S. at 163. The Court eschewed “inquiries into the state of mind of a
criminal defendant who has confessed . . . [that are] divorced from any coercion brought to bear on
the defendant by the State.” Id. at 167. It held instead that a suspect’s decision to confess is
“involuntary” only if “governmental conduct coerced his decision.” Id. Accord United States v.
Byram, 145 F.3d 405, 407 (1
st
Cir. 1998) (“[O]nly confessions procured by coercive official tactics
should be excluded as involuntary.”) (emphasis in original); United States v. Newman, 889 F.2d 88,
95 n.3 (6
th
Cir. 1989) (same).
It follows that even assuming, for the sake of argument, Tsarnaev made self-incriminating
statements to the police because he was worn down by pain and fatigue, or confused and light-
headed from taking pain medication, or was hoping to find out information about his brother, his
statements were still “voluntary” unless the police engaged in misconduct. See United States v.
Genao, 281 F.3d 305, 310 (1
st
Cir. 2002) (“[The facts must] add up to ‘police overreaching’ . . . for
a holding of coercion.”); United States v. Fruchter, 137 Fed. Appx. 390, 393 (2
nd
Cir. 2005) (“The
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district court properly found that no police overreaching or misconduct occurred during Yague's
interrogation and that, in the absence of coercion, the statement was not involuntary.”); United
States v. Sauseda, 526 Fed. Appx. 349. at *3 (5
th
Cir. 2013) (holding that statement was “voluntary”
because suspect “has not shown the presence of ‘police overreaching,’ the crucial element in a
voluntariness analysis”); see also Moran v. Burbine, 475 U.S. 412, 466 (Stevens, J ., dissenting)
(“[A]nalysis of the ‘voluntariness’ of a confession is frequently a convenient shorthand for
reviewing objectionable police methods.”)
In determining the “voluntariness” of Tsarnaev’s statements, the Court must consider “the
totality of the circumstances, including both the nature of the police activity and the defendant's
situation.” United States v. Hughes, 640 F.3d 428, 438 (1
st
Cir. 2011). The statements are
“voluntary” if the evidence shows that the agents did not use official coercive tactics, or, if they did,
that those tactics were not so coercive that Tsarnaev’s “will was overborne.” United States v.
J acques, 744 F.3d 804, 809 (1
st
Cir. 2014); see Byrom v. Epps, 518 Fed. Appx. 243, 256 (5
th
Cir.
2013) (“[It] is essential that there be a link between the coercive conduct of the police and the
confession of the defendant.”) (internal quotation marks and citations omitted); Burnett v.
Duckworth, 952 F.2d 1398, *2 n.5 (7
th
Cir. 1992) (same); Ryals v. Ingle, 990 F.2d 1259 (9th Cir.
1993) (to warrant exclusion, the “alleged coercive conduct must be causally related to the
confession”). The government bears the burden of proof by a preponderance of the evidence. Lego
v. Twomey, 404 U.S. 477, 489 (1972).
The Sixth Circuit has described the proper analysis this way:
Threshold to the determination that a confession was ‘involuntary’ for due process
purposes is the requirement that the police ‘extorted [the confession] from the
accused by means of coercive activity.’ Once it is established that the police activity
was objectively coercive, it is necessary to examine [a defendant’s] subjective state
of mind to determine whether the ‘coercion’ in question was sufficient to overbear
the will of the accused. . . . If the police misconduct at issue was not the ‘crucial
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motivating factor’ behind petitioner’s decision to confess, the confession may not be
suppressed.

McCall v. Dutton, 863 F.2d 454, 459 (6
th
Cir. 1988).
B. The agents did not coerce Tsarnaev into making statements against his will.

1. The agents did not use coercive tactics.
An evidentiary hearing will establish that the agents who questioned Tsarnaev did not use
coercive tactics that forced him to make statements against his will. Notwithstanding the dire threat
to public safety, they waited 24 hours before questioning Tsarnaev to ensure that he was medically
stable, lucid, and capable of giving accurate answers to their questions. They did not touch him,
except to make him more comfortable; they did not threaten him physically or verbally; they did not
deprive him of food, water, medical treatment, bathroom breaks, or adequate rest; they did not offer
him any promises, rewards, or inducements; and they did not employ forbidden types of trickery or
deceit. They also made no efforts psychologically to intimidate him. (The agents did not tell
Tsaranev about his brother’s death, or the manner of that death, to spare him emotional trauma.)
Only two agents questioned Tsarnaev, and they wore plain clothes and did not have their weapons
visible. They were polite and spoke quietly. They assured him that he was going to be fine. They
took steps to increase his comfort, such as removing his handcuff every time they entered the room,
adjusting his pillows as needed, and summoning nurses for him at his request. Tsarnaev never
dozed or drifted off during the interview; whenever the agents believed he was growing tired, they
ceased questioning him and advised him to rest or sleep.
These factors are ordinarily dispositive of the “voluntariness” determination. See, e.g.,
Moran, 475 U.S. at 421 (“[T]he record is devoid of any suggestion that police resorted to physical
or psychological pressure to elicit the statements.”); Fare v. Michael C., 442 U.S. 707, 726–727
(1979) (“[The defendant was] not worn down by improper interrogation tactics or questioning or by
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trickery or deceit. . . . The officers did not intimidate or threaten respondent in any way.”); United
States v. Verdugo, 617 F.3d 565, 575-76 (1
st
Cir. 2010) (“The circumstances surrounding Verdugo's
questioning . . . contain no traces of the ‘brutality, [p]sychological duress, threats, [or] unduly
prolonged interrogation’ that courts have previously found when they have concluded that
statements were involuntarily made.”) (collecting cases); Genao, 281 F.3d at 310 (“The record
establishes that the police did not apply undue or unusual pressure to Genao, use coercive tactics, or
threaten him with violence or retaliation if he did not confess.”); United States v. Vega-Figueroa,
234 F.3d 744, 749 (1
st
Cir. 2000) (“Defendant's statement was not the result of intimidation,
coercion resulting from the setting in which the statement was made, or a deliberate plan by the
agents to place defendant in an environment that would induce a confession.”)
Although the questioning took some time, there was good reason for that. Tsarnaev’s
tracheostomy slowed the pace of conversation considerably, as did the time it took for him to write
answers in a notebook. The agents took frequent and lengthy breaks (including one of more than 10
hours) to ensure that Tsarnaev received adequate time for sleep, rest, and medical care. The agents
also had to cover a large number of topics in detail to flush out whether any additional attacks were
planned or imminent and the identity of accomplices or perpetrators.
But most important, the length of the questioning was not designed to break down
Tsarnaev’s will to resist so that he would confess, nor did it have that effect.
There is simply no basis
for finding on the facts of this case that the length of questioning was coercive, let alone that it
overcame Tsarnaev’s will to resist or is causally related to any of his statements. See Stein v. New
York, 346 U.S. 156, 185 (1953) (holding that 12-hour interrogation “by a number of officers at a
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time and by different officers at different times” stretched out over 32-hour period was not so
“oppressive as to overwhelm powers of resistance”).
The police also did not question Tsarnaev continuously. On the contrary, as noted earlier,
they provided frequent and lengthy breaks during which Tsarnaev slept, rested and received medical
treatment. The periods of questioning on the first day were fewer, shorter, and farther between than
on the second, because by the second, Tsarnaev had had another day to heal and another night’s
sleep. Once again, on the facts of this case, there is no basis for a finding that the police denied
Tsarnaev adequate breaks in order to coerce a confession from him.
Although the police did not inform Tsarnaev of his right to remain silent or to have an
attorney present during questioning, and did not accommodate his repeated requests for a “human
rights lawyer” (or any lawyer), the Supreme Court has ruled that such omissions are not coercive.
In Procunier v. Atchley, 400 U.S. 446 (1971), a defendant “contended that his confession was
involuntary [in part] because he had been denied a lawyer, [and] because he had not been advised of
his right to remain silent.” Id. at 453. The Court rejected that argument, holding that “denial of the
right to counsel and failure to advise of the right to remain silent were not in themselves coercive.
Rather they were relevant only in establishing a setting in which actual coercion might have been
exerted to overcome the will of the suspect.” Id. at 453-54. The Court has also held that police do
not violate the constitution by failing to tell a suspect that an attorney retained to represent him is
attempting to contact him. Moran, 475 U.S. at 416-18, 432 (1986). (In this case, in any event, none
of the attorneys who showed up at Beth Israel seeking to communicate with Tsarnaev had been
retained or appointed by the Court to represent him.)
Finally, the fact that Tsarnaev received pain medication is not evidence of coercion, because
the medication was administered by medical staff for medical reasons, without input from the
police. See, e.g., United States v. Palmer, 203 F.3d 55, 61-62 (1
st
Cir. 2000); United States v.
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Chapman, 112 Fed. Appx. 469, 474 (6
th
Cir. 2004); United States v. Newman, 889 F.2d 88, 94 (6
th

Cir. 1989).
In short, the agents who questioned Tsarnaev were conducting a public-safety interview and
did not “prolong or increase a suspect's suffering against the suspect’s will . . . with the purpose and
intent of securing an incriminating statement.” Chávez, 538 U.S. at 797 (Kennedy, J ., concurring in
part and dissenting in part). Because the police employed no coercive tactics in questioning
Tsarnaev, his motion to suppress his statements on “involuntariness” grounds must be denied for
that reason alone.
2. Tsarnaev’s will was not overborne by police questioning.
Even assuming arguendo the existence of actual coercive tactics, it does not follow that
merely because Tsarnaev was recovering from gunshot wounds or had received pain medication
that his will was overborne. Tsarnaev was a healthy young man a few months shy of 20 years’ old
when he was shot in the course of his crimes. The medical records reflect that he was alert,
oriented, lucid, and conversant when he was brought to the hospital on April 19, 2013 at 9:00 p.m.
He had suffered bullet wounds but no internal injuries or significant loss of blood. (Hospital
records reflect he was given only one unit of blood in the emergency room.) He also appeared
psychologically normal and had suffered no apparent brain damage. (Although Tsarnaev claims
that he “likely” suffered both “a concussion” and “traumatic brain injury” [Deft. Mot. at 3], that is
speculative; his medical records do not say that, and his attending nurse told the agents the
opposite.) He underwent successful surgery lasting several hours and then began a recovery that
progressed steadily without setbacks.
Although Tsarnaev writes that he “was prescribed a multitude of pain medications” (Deft.
Mot. at 3), his hospital records show that by the time the police began questioning him he was
receiving only Fentanyl for pain, and that was changed four hours later to Dilaudid “PRN” or as
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needed. More important, Tsarnaev’s pain medication, far from weakening his will to resist
questioning, appears to have had the salubrious effect of blunting his pain while leaving him lucid
and clear-headed. He told the police at the start of each day’s interview that he could hear and
understand them and was not in too much pain. He then gave lucid, responsive, and in some cases
spirited answers to their questions.
Against this first-hand evidence that Tsarnaev’s pain medication had no ill effects, Tsarnaev
offers only speculation. He writes that “[t]he side effects of these [pain] medications include
confusion, light-headedness, dizziness, difficulty concentrating, fatigue, and sedation.” (Deft. Mot.
at 3). But courts have ruled that general allegations about the side-effects of drugs contribute little
to the analysis of whether a suspect’s will was overborne by allegedly coercive police tactics. See
Wolfrath v. LaVallee, 576 F.2d 965, 972 (2
nd
Cir. 1978). That is because “[t]he effects of narcotic
use will vary depending on the amount of drugs taken, the degree of tolerance developed by the
individual, and the idiosyncratic reaction of the person to the drugs.” Hansford v. United States,
365 F.2d 920, 923 (D.C. Cir. 1966).
In Wolfrath, for example, a defendant confessed to a robbery less than four hours after
receiving morphine and approximately one hour after receiving Demerol and sodium luminal in
connection with surgery for a bullet wound. The district court held that the defendant’s statements
were “involuntary” based on medical testimony that such drugs “would create a ‘fugue-like state’ in
the mind of the patient and would induce a euphoric feeling of invulnerability . . . [rendering the
patient] not capable of making a serious decision.” Id. at 971. But the Second Circuit reversed,
holding that mere “generalizations about the probable effect of drugs” are of little or no use in the
analysis of “voluntariness.” Id. at 972.
The facts of this case are similar to those of United States v. Short, 947 F.2d 1445 (10
th
Cir.
1991), in which the court held that a defendant’s statement was “voluntary” even though he was in
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16

the hospital with both arms in casts and was taking the painkillers Percodan and hydrocodeine when
interviewed by police. Id. at 1448. The court explained that, like Tsarnaev, “[d]efendant’s pain was
not so great, nor was his mind so clouded by pain pills that he was unable to think and converse
with the police freely and intelligently on several subjects. . . . Defendant’s will [thus] was not
overborne by the police.” Id. at 1450 (citations omitted). Likewise, in United States v. Martin, 781
F.2d 671 (9
th
Cir. 1985), the court held that the defendant’s statements were “voluntary” even
though he had been hospitalized to treat explosives injuries and had received Demerol for pain. The
court wrote that the defendant
was awake and relatively coherent during the questioning at the
hospital. . . . When he became too groggy to understand the
detective’s questions, Detective Schindler terminated the interview.
There is no evidence of extended and oppressive questioning. Nor
had Martin received excessive quantities or unusual combinations of
drugs. Martin’s injuries, while painful, did not render him
unconscious or comatose. Moreover, Martin said that he wanted to
talk to the officers and was not reluctant to tell his story. The district
court properly concluded that ‘although the defendant was injured and
under medical care at the time the statements were made, the type,
dosage, and schedule of painkilling narcotic administered to [Martin]
was not sufficient to overbear his will to resist the questioning or
impair his rational faculties.’

Id. at 674.
The Beth Israel medical staff evidently did not believe that Tsarnaev’s pain medication
impaired his judgment to the point where he could not make important decisions about his own
care. They had him sign informed consent forms for various medical and surgical procedures on
April 21 at 4:00 a.m., 7:15 a.m., and 2:30 p.m. This plainly indicates that the medical staff believed
Tsarnaev had a sufficiently “rational intellect” and “free will” to give informed consent at those
times.
Tsarnaev relies heavily on Mincey v. Arizona, 437 U.S. 385 (1978), in arguing that his
statement was “involuntary,” but that reliance is misplaced. For one thing, Mincey arrived at the
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17

hospital “depressed almost to the point of coma” and complained during the interview of
“unbearable” pain. Id. at 398-99. Tsarnaev, in contrast, arrived at the hospital alert, oriented, and
lucid, and he was in the same condition when the FBI interview began and ended. He also
repeatedly described his own pain level as tolerable. For another thing, although Mincey, like
Tsarnaev, was seriously wounded by gunshots, received “various drugs,” and was intubated, id. at
396, 398, his compromised physical condition, standing alone, is not what led the Court to conclude
his statements were “involuntary,” id. at 401-02. That conclusion was instead based on two other
factors.
First, Mincey “clearly expressed his wish not to be interrogated,” id. at 399-401, and in
keeping with that wish it appears he resisted giving any self-incriminating statements until the
police finally wore him down, id. at 399 n.16. Tsarnaev, in contrast, readily answered questions
about the Marathon bombings, Within minutes
of meeting the agents, for example, Tsarnaev told them that






Second, when the police interviewed Mincey, some of his written answers to their questions
were “not entirely coherent” and others showed that he was “confused and unable to think clearly
about either the events of that afternoon or the circumstances of his interrogation.” Id. at 398-99.
(For example, “two of the answers written by Mincey were: ‘Do you me Did he give me some
money (no)’ and ‘Every body know Every body.’” Id. at 399 n.15.) Mincey also “gave
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18

unresponsive or uninformative answers” and “complained several times that he was confused or
unable to think clearly.” Id. at 399-400.
Tsarnaev, in contrast, was responsive, coherent, and clearheaded throughout his interview
with the officers. With few exceptions, he wrote answers to their questions clearly, legibly, and in a
strong hand. The notes reveal no sign that Tsarnaev was mentally compromised, confused, or in
any way intimidated by the agents. On the contrary, they show that he answered questions when it
suited him, refused to answer questions when it did not, and did not hesitate to make demands for
things he wanted (notably, sleep, a “human rights lawyer,” and information about his brother’s
fate). In one early note, for example, Tsarnaev wrote,





Although in his first few notes Tsarnaev complained repeatedly that he was tired and wanted
to sleep, the agents complied with those requests. On April 20, 2013, the day questioning began,
Tsarnaev was interviewed for four periods averaging 45 minutes each, but in between those periods
he rested, slept and received medical care a total of nearly eight hours. Then, after another 65-
minute period of questioning, he rested, slept, and received medical care for 10-1/2 hours straight.
After that, he ceased complaining about being tired, and spent roughly equal amounts of time
talking to the agents and resting, sleeping, and receiving care. Moreover, unlike Mincey, Tsarnaev
never said that he wanted questioning to cease altogether, writing instead, “I don’t have to answer
that now” and “can we do this later?”
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19

Tsarnaev’s situation is closer to that of the defendant in United States v. Abdulmutallab,
2011 WL 4345243 (E.D. Mich. Sept. 16, 2011), than to Mincey’s. The defendant in Abdulmutallab
attempted to ignite a bomb concealed in his underwear while aboard a plane that had begun its
descent into Detroit’s main airport. Id. at *1. Abdulmutallab
suffered third degree burns to his lower extremities, was transported to the hospital,
was given 350 micrograms of fentanyl [approximately seven times the dose Tsarnaev
received], and then interrogated for approximately 50 minutes by federal agents
while he was in the burn care unit. Like the defendant in Mincey . . . he was isolated
from his family, friends, and legal counsel. Moreover, unlike Mincey, Defendant
was questioned without first being read his Miranda rights.

Id. A nurse testified that, notwithstanding the pain medication, Abdulmutallab “was lucid, fully
‘oriented times 3,’ was not confused, and gave no indication that he did not or could not understand
the questions being asked or the circumstances in which they were being asked.” Id. at *3. An
agent likewise testified that Abdulmutallab “was not confused, and understood where he was, why
he was there, what he was there for, and what had happened.” Id. Based on this testimony, the
district court found that the defendant’s statements were “voluntary.”
In sum, the evidence shows that Tsarnaev’s statements did not result from his will’s being
overborne by coercive official tactics. Although he was in a hospital bed recovering from gunshot
wounds and had received pain medication, neither the length of the questioning nor any other
purportedly abusive police tactic caused Tsarnaev Rather,
As the note he wrote in Watertown on the inside of the boat
reflects, Tsarnaev was eager to take credit for his crimes and “shed some light” on their meaning.
That indeed is a common practice among terrorists. Although Tsarnaev might have preferred fewer
questions and more sleep, especially at the very start of the interview, he never hesitated
His own behavior during the police interview
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20

reveals unmistakably that he retained a rational intellect and sufficient willpower to choose whether
to answer questions.
II. The Claimed Existence of a Miranda And Edwards Violation is Moot Because The
Government Will Not Use Tsarnaev’s Statements Against Him in Its Case-in-Chief
Despite The Public Safety Nature of The Interview.

A. The government was fully justified in conducting public safety questioning of Tsarnaev.

Miranda v. Arizona, 384 U.S. 436 (1966), prohibits the government from using a
defendant’s statements against him in its case-in-chief unless the statements were preceded by
Miranda warnings. In New York v. Quarles, 467 U.S. 649 (1984), however, the Supreme Court
held that there are situations “where concern for public safety must be paramount to adherence to
the literal language of the prophylactic rules enunciated in Miranda.” Id. at 653. Quarles involved
a woman who told police that she had just been raped at gunpoint by a man (Quarles) who had fled
into a nearby supermarket. Id. at 651-52. An officer found Quarles in the supermarket, discovered
that Quarles had an empty shoulder holster, and asked him where the gun was. Id. Quarles nodded
in the direction of some empty cartons and responded, “the gun is over there.” Id.
The New York courts held that Quarles’s statement and gun were inadmissible because the
police had not first read him his Miranda rights, but the Supreme Court reversed. It held that the
police need not give Miranda warnings before they “ask questions reasonably prompted by a
concern for the public safety.” Id. at 656. It reasoned that “the need for answers to questions in a
situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting
the Fifth Amendment's privilege against self-incrimination.” Id. at 657. The Court explained that if
in cases like the one before it “the police are required to recite the familiar Mirandawarnings before
asking the whereabouts of the gun, suspects in Quarles’ position might well be deterred from
responding,” which would impose too high a societal cost in light of the resulting “danger to the
public.” Id. at 657.
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21

Tsarnaev’s statements are admissible under the public-safety exception, because the
questioning was reasonably prompted by a need to protect the public from the risk of additional
bombs, weapons, or follow-on terrorist attacks. Although this case, unlike Quarles, did not involve
a single question about a missing weapon, it would be a mistake to limit Quarles to its facts merely
because the Quarles Court did not expressly authorize the more expansive public safety questioning
that took place here. The Quarles Court foresaw that future cases would involve different kinds of
public-safety threats and wrote that “in each case it [i.e. the scope of permissible public-safety
questioning] will be circumscribed by the exigency which justifies it.” Id. at 658.
The exigency in this case amply justified the questions the agents asked. Tsarnaev is not an
ordinary criminal; he is a terrorist who launched a coordinated bombing attack on an
internationally-renowned sporting event, killing three people and maiming and wounding hundreds
more. Nearly four days after the Marathon bombings, Tsarnaev was still deemed to pose such a
grave threat to public safety that the Governor of Massachusetts asked nearly one million people to
shelter in place for an entire day while law enforcement endeavored to find Tsarnaev and neutralize
him. The possibility that other bombs existed and/or that others associated with Tsarnaev might
engage in additional violence once he was captured posed a public safety threat of the highest order.
The agents investigating the Marathon bombings were well aware of the danger of coordinated
terrorist attacks, and they had an objectively reasonable belief that the Tsarnaev brothers might have
been radicalized, trained, directed, and assisted by a terrorist group, the members of which might
perpetrate other attacks. Under the circumstances, the officers who questioned Tsarnaev were
warranted in believing that the public’s need for answers outweighed the need for “adherence to the
literal language of the prophylactic rules enunciated in Miranda.” Id. at 653.
Courts have recognized that when it comes to potential terrorist attacks, public-safety
questioning necessarily encompasses more than simple inquiries like “where’s the gun?” In
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22

Abdulmutallab, supra, for example, the defendant told the agents who first interviewed him that he
was acting on behalf of al-Q’aeda. Approximately three hours after the defendant was taken to the
hospital, other federal agents, without first administering Miranda warnings, asked him
where he traveled, when he had traveled, how, and with whom; the details of the
explosive device; the details regarding the bomb-maker, including where Defendant
had received the bomb; his intentions in attacking Flight 253; who else might be
planning an attack; whether he associated with, lived with, or attended the same
mosque with others who had a similar mind-set as Defendant about jihad,
martyrdom, support for al-Qaeda, and a desire to attack the United States by using a
similar explosive device on a plane, and what these individuals looked like -- all in
an attempt to discover whether Defendant had information about others who could
be on planes or about to board planes with explosive devices similar to the one
Defendant used.

Abdulmutallab, 2011 WL 4345243, at *5. These questions were reasonable, the district court held,
because the police reasonably believed, based upon their “training, experience, and knowledge of
earlier al-Qaeda attacks, [that] this was not a solo incident and the potential for a multi-prong attack
existed even if Defendant was unaware of any specific additional planned attack.” Id. at *6. The
court further held that in the context of a terrorist threat, public-safety questioning includes
“information that could be used in conjunction with other U.S. government information to identify
and disrupt such imminent attacks before they could occur.” Id. The agents could thus ask
questions designed “to determine where to go next and investigate if anyone else might be planning
to or was already in the process of carrying a similar device on an aircraft.” Id.
Similarly, in United States v. Khalil, 214 F.3d 111 (2
nd
Cir. 2000), police questioned a bomb
maker who had been shot and wounded during a raid on his apartment. Id. at 115. He was
questioned at the hospital, without Miranda warnings, about the construction and stability of the
pipe bombs and whether he intended to kill himself when he detonated them. Id. at 115. The
district court held that all of these questions were public-safety related and fell within the Quarles
exception to Miranda. Id. The Second Circuit affirmed (although only the question about the
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23

defendant’s intending to kill himself had been challenged on appeal). See generally United States v.
Estrada, 430 F.3d 606, 611 (2
nd
Cir. 2005) (Sotomayor, J .) (because of the need for “flexibility in
situations where the safety of the public and the officers are at risk,” courts evaluating the
applicability of the public-safety exception must eschew "template[s]” and consider “the totality of
the circumstances in a given case.”) (internal citations omitted).
Although the police questioned Tsarnaev five days after the Marathon bombings and
approximately 24 hours after his arrest, the potential threat to public safety was no less real or
pressing than the one in Quarles. Tsarnaev’s arrest, his brother’s death, and the searches of their
home and vehicles did not rule out the possible existence of other bombs, bombers, or terrorist
plots. See, e.g., United States v. Liddell, 517 F.3d 1007, 1008-09 (8
th
Cir. 2008) (holding that even
after defendant told police that gun was in car, and they found it, Quarles permitted police to ask if
there was “anything else in there we need to know about,” because the discovery of one gun gave
rise to “an objectively reasonable concern that” there might be others); Allen v. Roe, 305 F.3d 1046,
1051 (9
th
Cir. 2002) (holding that public-safety exception applied notwithstanding defendant’s
argument “that a significant amount of time had elapsed from when the shooting occurred to when
the police questioned him,” because “[if] the gun was discarded in a public place, it posed a
continuing immediate danger . . . [that did] not dissipate over time.”); United States v. Carrillo, 16
F.3d 1046, 1049 (9th Cir. 1994) (noting that a “pressing need for haste is not essential” for the
public-safety exception to apply). Indeed, Quarles himself was handcuffed and in the custody of
armed officers when he was questioned. See 467 U.S. at 655. Moreover, as the dissent noted, the
police had no evidence that Quarles had an accomplice, the supermarket was “apparently deserted”
during the late-night arrest, and the “police could easily have cordoned off the store and searched
for the missing gun” rather than question Quarles about its whereabouts. Id. at 674-676 (Marshall,
J ., dissenting). Yet these facts did not alter the Court’s analysis.
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24

That Tsarnaev affirmatively asked for an attorney likewise does not change the analysis. As
the Ninth Circuit explained in United States v. DeSantis, 870 F.2d 536 (9
th
Cir. 1989), the Supreme
Court’s judgment that public safety concerns outweigh the marginal benefits of Miranda’s
procedural safeguards “appl[ies] with equal force to the procedural safeguards established when the
accused asks for the aid of counsel. Society's need to procure the information about the location of
a dangerous weapon is as great after, as it was before, the request for counsel.” Id. at 541. Accord
United States v. Mobley, 40 F.3d 688, 692 (4
th
Cir. 1994) (holding that “’[t]he same considerations
that allow the police to dispense with providing Miranda warnings in a public safety situation also
would permit them to dispense with the prophylactic safeguard that forbids initiating further
questioning of an accused who requests counsel.’”) (quoting DeSantis, 870 F.2d at 541)); Trice v.
United States, 662 A.2d 891 (D.C. App 1995) (same).
B. The government does not intend to use the statements Tsarnaev made to agents in its
case-in-chief.

Although the public-safety interview of Tsarnaev was non-coercive and fully justified by the
seriousness and scope of the public threat, the government does not intend to use Tsarnaev’s
statements in its case-in-chief at trial or sentencing. The strength of the evidence against Tsarnaev,
which includes the confession he wrote on the inside of the boat, makes affirmative use of the Beth
Israel statements unnecessary. The government reserves its right, however, to use the Beth Israel
statements to impeach Tsarnaev, or in rebuttal, in the event Tsarnaev offers testimony or other post-
arrest statements inconsistent with them. See Harris v. New York, 401 U.S. 222, 226 (1971) (“The
shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense,
free from the risk of confrontation with prior inconsistent utterances.”); Oregon v. Hass, 420 U.S.
714, 722 (“[S]ufficient deterrence flows when the evidence in question is made unavailable to the
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25

prosecution in its case in chief.”). This stipulation on the government’s part effectively moots the
Miranda and Edwards issues.
1

III. Tsarnaev’s Initial Appearance Was Not Unnecessarily Delayed.

Federal Rule of Criminal Procedure 5(a) provides in pertinent part that “[a] person making
an arrest within the United States must take the defendant without unnecessary delay before a
magistrate judge.” In McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States,
354 U.S. 449 (1957), the Supreme Court, exercising “its supervisory authority over the
administration of criminal justice in the federal courts,” McNabb, 318 U.S. at 341, held that
statements made by a defendant who is not brought before a judicial officer without unnecessary
delay should be excluded from evidence, id. at 346. Ten years after the Court decided Mallory,
Congress limited its scope by enacting 18 U.S.C. 3501(c), which provides in part that a defendant’s
voluntary statements made “within six hours immediately following his arrest or other detention”
are admissible regardless of the reasons for presentment delay. In Corley v. United States, 556
U.S. 303 (2009), the Supreme Court reconciled Rule 5(a), section 3501(c), and the McNabb–
Mallory line of cases by announcing the following rule: if a voluntary statement is made within six
hours of arrest, it is admissible regardless of the reason for presentment delay; if it is made “before
presentment and beyond six hours, however, the court must decide whether delaying that long was
unreasonable or unnecessary under the McNabb–Mallory cases, and if it was, the confession is to be
suppressed.” Id. at 322. See United States v. J acques, 744 F.3d 804 (1
st
Cir. 2014); United States v.
McDowell, 687 F.3d 904, 909 (7
th
Cir. 2012).

1
If the Court determines that the Quarles issue is not moot and must be decided, the
government respectfully requests an opportunity to be heard on the issue before any decision is
made.
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26

The presentment delay in this case was reasonable for several reasons. First, courts have
held that where, as here, an arrest occurs at night, on a holiday, or over the weekend, it is reasonable
to delay presentment until the following business day. See, e.g., United States v. Ortega, 471 F.2d
1350, 1362 (2
nd
Cir,. 1972); United States v. Mendoza, 473 F.2d 697, 702 (5
th
Cir. 1973); United
States v. Collins, 349 F.2d 296, 298 (6
th
Cir. 1965); United States v. Mills, 434 F.2d 266, 273 (8
th

Cir. 1970); United States v. García–Hernández, 569 F.3d 1100, 1106 (9
th
Cir. 2009); Gregory v.
United States, 364 F.2d 210, 212 (10
th
Cir. 1966); United States v. Carter, 484 Fed.Appx. 449, 457
(11th Cir. 2012). These decisions are based on the well-established doctrine that “a delay may be
reasonable if caused by administrative concerns, such as the unavailability of a magistrate following
an arrest.” J acques, 744 F.3d at 814. Tsarnaev was presented before the magistrate on the first
business day following his arrest.
Although Tsarnaev argues that a magistrate judge could have made him- or herself available
over the weekend to conduct an initial appearance, Rule 5(a) has never been viewed as embodying
such a requirement. On the contrary, in J acques, the First Circuit took it for granted that a
magistrate judge was unavailable for Rule 5(a) purposes because the arrest there occurred at 7:20
p.m. See id. at 807, 818. On Tsarnaev’s logic, magistrate judges in this district would have to
conduct initial appearances 24 hours a day, seven days a week, because it is always possible for a
magistrate judge to make himself or herself available if needed. And not just magistrate judges: as
the Ninth Circuit pointed out in United States v. Van Poyck, 77 F.3d 285 (9
th
Cir. 1996), the next-
business-day rule “is dictated by the complex procedures needed to arraign a defendant. An
arraignment requires court personnel to randomly select a judge, requires pretrial services to process
the defendant, and often requires an interpreter.” Id. at 289. It also normally requires the presence
of a court reporter, one or more Deputy Marshals, sheriffs to transport the defendant if he is
detained, and other personnel to staff the courthouse (where virtually all initial appearances take
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27

place). Tsarnaev cites no authority for the remarkable proposition that a presentment delay is
unreasonable if all of these actors could be summoned on nights, holidays, and weekends to process
arrestees. He also cites no authority for the proposition that if an ordinary defendant need not be
presented on nights, holidays, or weekends, Rule 5(a) required that a special exception be made for
him.
The delay in this case also was reasonable because Tsarnaev was in the hospital. Rule 5(a)
contemplates that initial appearances will occur in a courthouse: it states that the arresting officer
“must take the defendant without unnecessary delay before a magistrate judge,” not vice-versa. It
would have been reasonable for the agents to have delayed bringing Tsarnaev to the courthouse for
his initial appearance until he was well enough to go. See, e.g., United States v. Isom, 588 F.2d
858, 862 (2
nd
Cir. 1978) (“The period during which appellant received medical treatment (at his
request) and overnight lodging at the MCC should not be counted in computing unnecessary
delay.”); United States v. J ohnson, 352 F.Supp.2d 596, 598 (D. Md. 2005) (same); see also United
States v. Bear Killer, 534 F.2d 1253, 1257 (8
th
Cir. 1976) (holding that it is reasonable to delay
presentment of an intoxicated individual until he becomes sober); United States v. Manuel, 706 F.2d
908, 914 (9
th
Cir. 1983) (same). Similarly, in light of Tsarnaev’s need for medical treatment, it was
reasonbale for the magistrate judge to delay going to the hospital until Monday morning – the first
business day after Tsarnaev’s arrest -- to conduct the initial appearance, at which point she
determined that Tsarnaev was alert, mentally competent, and lucid.
Finally, it is important to bear in mind that the agents began questioning Tsarnaev as soon as
they received medical clearance to do so, and that Tsarnaev
In
United States v. Mitchell, 322 U.S. 65 (1944), the Supreme Court held that it was error to suppress a
defendant’s confession given shortly after his arrest, even though he was thereafter illegally
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28

detained for eight days before being presented. Id. at 69-70. The Court noted the chief purpose of
the prompt presentment requirement is to prevent police from using lengthy periods of secret
detention to apply “those reprehensible practices known as the ‘third degree’” to extract
confessions. Id. at 66. As we have already shown, far from subjecting Tsarnaev to the “third
degree” in a secluded prison cell, the agents who questioned Tsarnaev did so in a hospital where
Tsarnaev received world-class medical treatment along with all of the rest, refreshment, and
bathroom breaks he required; the agents themselves were polite, casually dressed, carried no visible
weapons, applied no physical or psychological pressure, made no threats or promises, unhandcuffed
him every time they were present, and made him as comfortable as possible. Nothing in this set of
circumstances suggests that Tsarnaev’s initial appearance was delayed solely for the purpose of
interrogation. Corley, 129 5. Ct. at 1563 ("delay for the purpose of interrogation is the
epitome of 'unnecessary delay,’") (quoting Mallory, 354 U.S. at 455-456).
In sum, the government did nothing wrong: Tsarnaev was promptly presented to a
magistrate, taking into consideration that he was arrested on a Friday night and that he needed
medical treatment. “J urists and scholars uniformly have recognized that the exclusionary rule
imposes a substantial cost on the societal interest in law enforcement by its proscription of what
concededly is relevant evidence.” Connelly, 479 U.S. at 166. That cost is justified solely by the
need to effectively deter unlawful interrogation practices. See Miranda, 384 U.S. 436 . As the
Supreme Court recently observed in the Fourth Amendment context, “[a]bout all that exclusion
would deter in this case is conscientious police work.” Davis v. United States, 131 S. Ct. 2419,
2429 (2011). Under the circumstances of this case, there is no reason to hold that any of Tsarnaev’s
statements are inadmissible under Rule 5, 18 U.S.C § 3501(c), or the McNabb-Mallory line of
cases.
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29

CONCLUSION
WHEREFORE, the government respectfully requests that Tsarnaev’s motion to suppress
statements be denied.


Respectfully submitted,

CARMEN M. ORTIZ
United States Attorney

By: /s/ William D. Weinreb
WILLIAM D. WEINREB
ALOKE S. CHAKRAVARTY
NADINE PELLEGRINI
Assistant U.S. Attorneys


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